Litigation

LITIGATION UPDATE: APRIL 2024

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A monthly publication of the Litigation Section of the California Lawyers Association.

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Colin P. Cronin, Jenn French, Jennifer Hansen, Ryan Wu
Western Apache Members Lose Quest for Injunction.

Oak Flat is a site of great spiritual value to the Western Apache Indians and sits atop the world’s third-largest deposit of copper ore. To take advantage of that deposit, Congress by statute directed the federal government to transfer the land to Resolution Copper, which would then mine the ore. Plaintiff, an organization that represents the interests of certain members of the San Carlos Apache Tribe, sued the government, seeking an injunction against the land transfer on the ground that the transfer would violate its members’ rights under the free exercise clause of the First Amendment, the Religious Freedom Restoration Act (42 U.S.C. § 21B), and an 1852 treaty between the United States and the Apaches. The district court denied plaintiff’s motion for a preliminary injunction against the federal government’s transfer of Oak Flat. A majority of an en banc panel of the Ninth Circuit held that plaintiff was unlikely to succeed on the merits on any of its claims, and consequently was not entitled to preliminary injunctive relief. (Apache Stronghold v. United States (9th Cir., Mar. 1, 2024) 95 F.4th 608.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-15295.pdf

Colorado Does Not Have the Constitutional Authority to Enforce Section 3 of the Fourteenth Amendment.

A group of Colorado voters contended that Section 3 of the Fourteenth Amendment to the U.S. Constitution prohibits former President Donald J. Trump, who seeks the presidential nomination of the Republican Party in this year’s election, from becoming president again. Agreeing with that contention, the Colorado Supreme Court ordered the Colorado Secretary of State to exclude the former president from the Republican primary ballot in the state and to disregard any write-in votes that Colorado voters might cast for him. Trump challenged that decision in the U.S. Supreme Court. In a per curiam opinion, the nation’s highest court reversed, stating: “[R]esponsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.” (Trump v. Anderson (U.S., Mar. 4, 2024) 601 U.S. 100.)

https://www.supremecourt.gov/opinions/23pdf/601us1r06_m6hn.pdf

Restitution Under Song-Beverly Act. 

The Song-Beverly Consumer Warranty Act permits new vehicle buyers who have been damaged by a manufacturer’s failure to comply with the act to sue under Civil Code § 1794 for the recovery of damages and other relief. If a manufacturer is unable to repair a new vehicle after a reasonable number of attempts, Civil Code § 1793.2, subdivision (d) requires the manufacturer to promptly replace the vehicle or promptly pay restitution “in an amount equal to the actual price paid or payable by the buyer.” The question before the California Supreme Court here was whether the statutory restitution remedy must be reduced when a buyer has received money for trading in or selling a defective vehicle. California’s highest court held: “We conclude that in an action pursuant to section 1794, neither a trade-in credit nor sale proceeds reduce the statutory restitution remedy set forth in section 1793.2, subdivision (d)(2) at least where, as here, a consumer has been forced to trade in or sell a defective vehicle due to the manufacturer’s failure to comply with the Act.” (Niedermeier v. FCA US LLC (Cal., Mar. 4, 2024) 15 Cal.5th 792.)

https://www.courts.ca.gov/opinions/documents/S266034.PDF

Spoliation of Evidence.

In an employment action alleging various torts and statutory violations, plaintiff coordinated the deletion of text messages between her and coworkers. The district court granted defendant terminating sanctions. Affirming, the Ninth Circuit found no abuse of discretion. (Jones v. Riot Hospitality Group, LLC (9th Cir., Mar. 5, 2024) 95 F.4th 730.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/05/22-16465.pdf

No Immunity for Social Workers.

Plaintiff’s 20-day-old baby fell off the bed. Plaintiff immediately took the baby to the hospital, where medical personnel examined and watched the baby for four hours. Out of an abundance of caution, a mandated reporter at the hospital reported the matter to the county social services agency. Things did not go well, and the baby was taken away from the parents for almost two months. The mother sued the social workers involved under 42 U.S.C. § 1983. The district court denied absolute and qualified immunity and the social workers appealed. Affirming, the Ninth Circuit noted that the social workers were sued for failure to provide the parents with notice of the detention hearing even though the social workers had the parents’ contact information and for “their acts of judicial deception regarding [the mother’s] whereabouts.” (Rieman v. Vazquez (9th Cir., Mar. 5, 2024) 96 F.4th 1085.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/05/22-56054.pdf

Force Majeure

Plaintiffs paid defendants millions of dollars to secure their performance at a music festival. In compliance with government regulations during the pandemic, plaintiffs canceled the festival, and demanded return of the deposit under the force majeure provision of the contract between the parties. Defendants refused to return the deposit. The trial court granted summary judgment for defendants. Affirming, the Court of Appeal analyzed and relied on the third sentence of the force majeure provision, which stated: “However, if the Artist is otherwise ready, willing, and able to perform[,] Purchaser will pay Producer the full Guarantee unless such cancellation is the result of Artist’s death, illness, or injury, or that of its immediate family, in which case Producer shall return such applicable pro-rata portion of the Guarantee previously received unless agreed otherwise.” (VFLA Eventco, LLC v. William Morris Endeavor Entertainment (Cal. App. 2nd Dist., Div. 8, Mar. 6, 2024) 100 Cal.App.5th 287.)

https://www.courts.ca.gov/opinions/documents/B323977.PDF

Previously we reported: Procedures Universities Must Follow When Investigating Sexual Misconduct.

University of Southern California (USC) student was found to have committed sexual misconduct and was expelled. The Court of Appeal held that USC’s disciplinary procedures were unfair because they denied the student a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. Reversing the judgment of the Court of Appeal, the California Supreme Court stated: “We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually. . . . Instead, private organizations should ‘retain the initial and primary responsibility for devising a method’ to ensure adequate notice and a meaningful opportunity to be heard. (Ibid.) We accordingly reverse the Court of Appeal’s judgment.” (Boermeester v. Carry (2023) 15 Cal.5th 72.)

The latest:

Following remand, the parties filed supplemental briefs. This time around, the Court of Appeal found that substantial evidence supported USC’s decision and that there was no denial of due process. (Boermeester v. Carry (Cal. App. 2nd Dist., Div. 8, Mar. 7, 2024) 100 Cal.App.5th 383.)

https://www.courts.ca.gov/opinions/documents/B290675N.PDF

Interim Adverse Judgment Rule.

When a bar wouldn’t serve plaintiff any more alcohol, he complained he was being discriminated against on the basis of his race. The bar called the director of security, and after matters got physical, called the police. The man was charged with battery. After the criminal trial judge denied the man’s motion for acquittal under Penal Code § 1118.1, a jury found him not guilty. He then brought this action for malicious prosecution and race discrimination. The trial court granted summary judgment for defendants. Affirming, the Court of Appeal stated: “[U]nder the interim adverse judgment rule, the denial of Jackson’s motion for acquittal establishes that Lara had probable cause as a matter of law.” (Jackson v. Lara (Cal. App. 4th Dist., Div. 1, Feb. 22, 2024) 100 Cal.App.5th 337.)

https://www.courts.ca.gov/opinions/documents/D081549.PDF

Damages and Fees for Misappropriation of Trade Secrets. 

Plaintiff sued defendants for misappropriation of trade secrets and other causes of action. A jury found defendants misappropriated trade secrets, but that plaintiff suffered no damage as a result. The trial court granted a permanent injunction against defendants and then ordered only a fraction of the attorney fees requested by plaintiff. Affirming in part, reversing in part, and remanding for another jury trial, the Court of Appeal held: “[W]e find the court erred in how it went about determining the amounts awarded by (1) mechanically awarding only 25 percent of the incurred attorney fees and costs because [plaintiff] prevailed on only one of four claims . . . and (2) denying recovery of any attorney fees incurred for discovery and motion practice. . . . [¶] . . . We hold a plaintiff in a misappropriation case may recover, as an element of damages, the expert fees it incurs to stop or mitigate misappropriation, but not the expert fees to investigate a suspected misappropriation.” (Applied Medical Distribution Corporation v. Jarrells (Cal. App. 4th Dist., Div. 3, Mar. 8, 2024) 100 Cal.App.5th 556.)

https://www.courts.ca.gov/opinions/documents/G062056.PDF

Consumer Violations Against Online University.

Defendants are former owners of an online university. Following a bench trial, the trial court found that, for more than a decade, defendants violated the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; UCL) and the False Advertising Law (Bus. & Prof. Code, § 17500 et seq.; FAL) by making false and misleading statements to prospective students. The trial court determined defendants committed 1,243,099 UCL and FAL violations and imposed $22,375,782 in civil penalties. On appeal, defendants contended the penalty should be reduced for various reasons. Modifying the penalty, the Court of Appeal held the trial court inadvertently penalized defendants for expired FAL violations and reduced the judgment by $933,453 because of the statute of limitations error. (People v. Ashford University, LLC (Cal. App. 4th Dist., Div. 1, Mar. 8, 2024) 100 Cal.App.5th 485.)

https://www.courts.ca.gov/opinions/documents/D080671.PDF

Trial Court Erred in Taxing Costs in Matter Involving Collection of Judgment.

In 2019, the trial court entered a default judgment against defendant and another party in the amount of $477,075.71, which included an award of attorney fees pursuant to contract. Defendant did not pay the amount due under the judgment. In 2020, plaintiff filed a second action against defendant and others, alleging that defendant quitclaimed his interest in real property to his spouse and recorded sham deeds of trust to avoid the lien in favor of plaintiff imposed by the abstract of judgment. In the second action, plaintiff sought to cancel deeds of trust to two properties, quiet title to the same, and set aside the allegedly fraudulent transfer under the Uniform Voidable Transfer Act (Civ. Code, § 3439 et seq.; UVTA). Plaintiff filed a memorandum of costs after judgment in the first action seeking costs that were primarily incurred in pursuing the second action. Defendant moved to tax costs, and the trial court in the first action granted the motion. The trial court concluded that a judgment creditor may not claim attorney fees and costs incurred in a separate action before it has prevailed in that action. On appeal, plaintiff contended that Code of Civil Procedure § 685.040 does not contain a “prevailing party” requirement. Reversing, the Court of Appeal stated: “We agree and conclude the trial court abused its discretion in granting the motion to tax costs on this basis.” (G.F. Galaxy Corporation v. Johnson (Cal. App. 4th Dist., Div. 1, Feb. 26, 2024) 100 Cal.App.5th 542.)

https://www.courts.ca.gov/opinions/documents/D081492.PDF

Lower Federal Court’s Denial of Arbitration in a Class Action Reversed.

The district court denied defendant’s motion to compel arbitration of a class action alleging an airline breached a contract by not issuing a refund following flight cancellations for tickets purchased through a third-party vendor. The contract between defendant and the third-party vendor contained an arbitration clause. The Ninth Circuit reviewed defendant’s appeal de novo and concluded that under the ground of equitable estoppel and California contract law, it was appropriate to enforce the arbitration clause despite the fact that defendant was a non-signatory to the contract between plaintiffs and the third-party vendor. (Herrera v. Cathay Pacific Airways Limited (9th Cir., Mar. 11, 2024) 94 F.4th 1083.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/11/21-16083.pdf

Arbitration Agreement Unenforceable Under Federal Arbitration Act When Transportation Employee Works on a Purely Local Basis.

In a class action employment dispute, plaintiff worked at a California warehouse facility that received watches, apparel, and shoes from mostly international locations. The named plaintiff, Ortiz, did not transport products across great distances and interacted with interstate commerce on a purely local basis. The district court declined to compel arbitration, concluding the Federal Arbitration Act (FAA) did not apply because Ortiz qualified as an exempt “transportation worker.” Analyzing the situation and affirming the order, the Ninth Circuit stated: “To determine whether the FAA applies, we must decide whether Ortiz belonged to a ‘class of workers engaged in foreign or interstate commerce,’ 9 U.S.C. § 1, since such workers are exempted from the FAA. Id. . . . [¶] . . . If Saxon [v. Southwest Airlines Co. (2002) 596 U.S. 450, 455–459] stands for anything, it is that an employee is not categorically excluded from the transportation worker exemption simply because he performs his duties on a purely local basis.” (Ortiz v. Randstad Inhouse Services, LLC (9th Cir. Mar. 12, 2024) 95 F.4th 1152.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/12/23-55147.pdf

Utilities Must Pay Moving Costs for Its Equipment on Order for Public Entity to Install Streetcar System.

When a government grants a utility permission to place pipes, transmission lines, or other equipment in a public right-of-way, it sometimes becomes necessary to move that equipment to allow the construction of roads, sewer systems, or other infrastructure. The question in this case was who pays for the movement of utilities when a county transportation authority is installing a streetcar system. The U.S. Supreme Court has explained, “the traditional common law rule” is that utilities are “required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities.” (Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. (1983) 464 U.S. 30, 35.) But here, the defendant utilities argued that the common-law rule applies only when the relocation is carried out for “governmental” purposes and that a streetcar line is a “proprietary” function for which compensation is required. Affirming the district court’s grant of summary judgment for the transportation authority, the Ninth Circuit stated: “We conclude that the Utilities are not entitled to compensation either under the Takings Clause or under state law. We affirm the judgment of the district court.” (Southern California Edison Company v. Orange County Transportation Authority (9th Cir., Mar. 13, 2024, No. 22-55498) 96 F.4th 1099.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/13/22-55498.pdf

Public Injunction Claims Are Different from PAGA Claims.

Defendant RAC Acceptance East, LLC (RAC) leases household and electronic items through rent-to-own contracts. Two of defendant’s customers brought a class action, alleging defendant charged fees that violate California’s consumer protection laws. After more than a year of discovery and settlement negotiations, defendant moved to compel arbitration pursuant to an agreement that contained the following provision: “[N]either you nor RAC may seek, nor may the Arbitrator award, relief that would affect RAC account holders other than you. There will be no right or authority for any dispute to be brought, heard, or arbitrated as a class, collective, mass, private attorney general, or representative action.” The district court denied defendant’s motion to compel arbitration. In Blair v. Rent-A-Center, Inc. (9th Cir. 2019) 928 F.3d 819, the Ninth Circuit considered the same provision and found it to be unenforceable under California law and that California law is not preempted by the Federal Arbitration Act. Defendant contended on appeal that Blair was abrogated by the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639. Affirming, the Ninth Circuit stated: “Viking River dealt with [Private Attorneys General Act] claims, which are different from public injunction claims brought under the consumer protection statutes at issue in Blair and this case.” (McBurnie v. RAC Acceptance East, LLC (9th Cir., Mar. 14, 2024) 95 F.4th 1188.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/14/22-16868.pdf

The Word “Bimbo” Is Not Vulgar.

Samantha Wood petitioned the court to change her name to Candi Bimbo Doll. The trial court denied the petition with a long explanation, including the following: “‘[N]o person has a statutory right to officially change their name to a name universally recognized as being offensive. [Citation.] [¶] Although the word “bimbo” has sometimes been used to mean a prostitute, the Oxford English Dictionary says it’s used now as a derogatory term for “a young woman considered to be sexually attractive but of limited intelligence.” The derogatory meaning of bimbo, universally, is an attractive but stupid young woman; a foolish, stupid, or inept person. [¶] The Court is aware of a TikTok trend of the 2020’s, post-covid shut down, called “Bimbofication” which encourages embracing self-love and claiming the word “bimbo” as their own. While the perception of “bimbo” may be changing in the TikTok world, the word itself is perceived as offensive and seen as a step backward for women empowerment in our culture.’” The Court of Appeal reversed the trial court’s denial of the petition and stated: “In sum and in short, Bimbo is not a fighting word. It is not vulgar. And according to the trial court’s description of TikTok and the professor’s comments, it is not necessarily offensive.” (Wood v. San Francisco County Superior Court (Cal. App. 1st Dist., Div. 2, Mar. 14, 2024) 100 Cal.App.5th 717.)

https://www.courts.ca.gov/opinions/documents/A168463N.PDF

Public Official on His Personal Social Media Account.

Defendant had a Facebook account he considered to be his personal account, and, when he received unwelcome comments, he deleted them and blocked those who sent them. As it happens, defendant is also the City Manager of Port Huron, Michigan. Plaintiff is one of the unwelcome commentors who defendant blocked, and he sued defendant for violating his right to free speech. When the case reached the U.S. Supreme Court, the court noted: “When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private.” Remanding the matter back to the district court for further proceedings, the nation’s highest court stated: “The state-action doctrine requires [plaintiff] to show that [defendant] (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” (Lindke v. Freed (U.S., Mar. 15, 2024) 144 S.Ct. 756.)

https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf

More Public Officials on Social Media. 

Trustees of a school district used their public pages they had used for campaigning on their personal Facebook pages after the election. On their Facebook accounts, they gave posted school district updates, and solicited feedback from constituents. Their Facebook pages described them as “Government Officials” and noted their official positions. One of the trustees used her Twitter account in much the same way. Plaintiffs are the parents of children who attend district schools, and they posted statements critical of the trustees on the trustees’ accounts. The trustees deleted the criticisms and blocked plaintiffs, who sued for violation of their First Amendment rights. The district court granted the trustees qualified immunity but permitted the case to proceed on the ground the trustees acted under color of law, and the Ninth Circuit affirmed. Remanding the case back to the Ninth Circuit, the U.S. Supreme Court stated: “We granted certiorari in this case and in Lindke v. Freed, ___ U. S. ___ (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. 598 U. S. ___ (2023). Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.” (O’Connor-Ratcliff v. Garnier (U.S., Mar. 15, 2024) 144 S.Ct. 717.)

https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf

Nonparties to Arbitration Agreement Could Not Compel Arbitration.

When plaintiffs purchased a vehicle, the plaintiffs and the dealership entered into an agreement with an arbitration provision. Later, plaintiffs sued the manufacturer and a vehicle repair facility. Both defendants moved to compel arbitration based on the plaintiffs’ agreement with the selling dealership. The trial court ruled that the Nissan defendants, who were not parties to the sale contract between plaintiffs and the dealership containing the arbitration clause, could not invoke the clause to compel arbitration based on the doctrine of equitable estoppel. The trial court declined to apply the holding of Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. Affirming, the Court of Appeal stated: “Since the trial court’s ruling, four published Court of Appeal decisions have rejected Felisilda and the Supreme Court has granted review to resolve the conflict. We now join the more recent line of authorities.”

(Davis v. Nissan North America, Inc. (Cal. App. 4th Dist., Div. 1, Mar. 15, 2024) 100 Cal.App.5th 825.)

https://www.courts.ca.gov/opinions/documents/D083006.PDF

Peremptory Challenge of Judge Denied. 

A criminal defendant filed a petition for writ of mandate challenging the trial court’s denial of his Code of Civil Procedure § 170.6 motion, which he filed against the judge who was to resentence him. The trial court denied the motion because the judge against whom the challenge was filed was the original judge who sentenced defendant years ago and Penal Code § 1172.6 requires the sentencing judge to resentence. Affirming, the Court of Appeal denied the petition as untimely because the defendant had to have challenged the original sentencing judge before he accepted the guilty plea. (Gomez v. Superior Court (Cal. App. 4th Dist., Div. 3, Mar. 15, 2024) 100 Cal.App.5th 778.)

https://www.courts.ca.gov/opinions/documents/G062526.PDF

Section 230.

Plaintiffs are Steve Wozniak—whose YouTube channel was among those hijacked by scammers who bilked viewers out of cryptocurrency—and 17 individuals who fell victim to the scam and lost varying amounts of cryptocurrency. They sued YouTube and Google, asserting nine causes of action alleging that defendants had been knowingly hosting, promoting, and profiting from the scam for years. The trial court sustained defendants’ demurrer on the ground that plaintiffs’ claims were barred by the Communications Decency Act of 1996 (47 U.S.C. § 230), which generally provides immunity to interactive computer services that a plaintiff seeks to treat as a publisher or speaker of information provided by another content provider. Affirming in part and reversing in part, the Court of Appeal remanded to give plaintiff an opportunity to amend and stated: “We hold that most of plaintiffs’ claims seek to treat defendants as a publisher or speaker of third-party content and are therefore precluded by section 230. However, we also conclude that one of plaintiffs’ claims—that defendants created their own content and materially contributed to the unlawfulness of the scam by providing verification badges to hijacked YouTube channels—includes allegations which potentially could fall outside the scope of section 230 immunity.” (Wozniak v. YouTube, LLC (Cal. App. 6th Dist., Mar. 15, 2024) 100 Cal.App.5th 893.)

https://www.courts.ca.gov/opinions/documents/H050042.PDF

Texas Immigration Law. 

Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. The district court declared that Texas’s law amounted to “nullification of federal law and authority—a notion that is antithetical to the Constitution and has been unequivocally rejected by the federal courts since the Civil War,” and barred Texas from enforcing its law while the litigation over the law continued.  The Fifth Circuit issued an administrative order allowing Texas to immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico; that is, it placed a stay on the lower court’s order barring Texas from enforcement.  The federal government petitioned the U.S. Supreme Court to vacate the stay pending appeal of the constitutionality of the Texas law; that is, the government wanted Texas barred from enforcing its law until the matter makes its way through the courts. On March 18, Justice Alito extended the stay; that is, the high court in effect permitted Texas to immediately enforce its law. On March 19, Justices Sotomayor and Kagan dissented from Justice Alito’s order, and Justices Barrett and Kavanaugh wrote separately to concur with Justice Alito’s order to extend the stay. Justice Sotomayor wrote that the Texas law “upends the federal-state balance of power and will result in chaos.” (United States v. Texas (U.S., Mar. 19, 2024) 144 S.Ct. 797.)

https://www.supremecourt.gov/opinions/23pdf/23a814_febh.pdf
https://www.supremecourt.gov/opinions/23pdf/23a814_febh.pdf#page=6
https://www.supremecourt.gov/opinions/23pdf/23a814_febh.pdf#page=16

Nine Hours Later. The Fifth Circuit issued the following order nine hours after the U.S. Supreme Court declined to curtail the state of Texas from enforcing its immigration law: “Oral argument is scheduled on March 20, 2024, to consider the Appellants’ Motion to Stay Preliminary Injunction Pending Appeal. A majority of the panel has concluded that the administrative stay entered by a motions panel on March 2, 2024, should be lifted. Accordingly, [¶] IT IS ORDERED that the administrative stay of this appeal previously entered by a motions panel on March 2, 2024, is DISSOLVED.” (United States v. Texas (5th Cir., Mar. 19, 2024) 96 F.4th 797.)

https://www.ca5.uscourts.gov/opinions/pub/24/24-50149-CV1.pdf

March 26. The Fifth Circuit stayed the injunction pending appeal, which meant Texas is enjoined from enforcing its statute for the time being. (United States v. Texas (5th Cir., Mar. 26, 2024) 2024 WL 1297164.)

https://www.ca5.uscourts.gov/opinions/pub/24/24-50149-CV2.pdf

Cancellation of Removal Order Is Reviewable by Courts of Appeals.

An Immigration Judge (IJ) denied cancellation of an order for petitioner’s removal from the country following petitioner’s argument that his U.S.-citizen son depended on him for emotional and financial support. On certiorari, the U.S. Supreme Court considered whether an IJ’s hardship determination is reviewable under 8 U.S.C. §1252(a)(2)(D), which gives Courts of Appeals jurisdiction to review “questions of law.” The nation’s highest court determined the issue is reviewable, stating: “The application of a statutory legal standard (like the exceptional and extremely unusual hardship standard) to an established set of facts is a quintessential mixed question of law and fact. Guerrero-Lasprilla v. Barr held that such questions are reviewable under §1252(a)(2)(D). 589 U. S. 221, 225 (2020).” (Wilkinson v. Garland (U.S., Mar. 19, 2024) 144 S.Ct. 780.) 

https://www.supremecourt.gov/opinions/23pdf/22-666_new_7758.pdf

No-Fly List. 

Petitioner, a U.S. citizen who was placed on the No-Fly List, sued the government, contending its action was unlawful. Later, the government removed him from the list. The question before the courts was whether the case should proceed or was now moot. The district court found that it was moot, but the Ninth Circuit reversed, finding that the government needed to show that the conduct cannot reasonably be expected to recur. Agreeing with the Ninth Circuit, the nation’s highest court stated: “A case does not automatically become moot when a defendant suspends its challenged conduct and then carries on litigating for some specified period. . . . [¶] . . . [¶] Necessarily, our judgment is a provisional one. Just because the government has not yet demonstrated that [petitioner’s] case is moot does not mean it will never be able to do so. This case comes to us in a preliminary posture, framed only by uncontested factual allegations and a terse declaration. As the case unfolds, the complaint’s allegations will be tested rather than taken as true, and different facts may emerge that may call for a different conclusion.” (Federal Bureau of Investigation v. Fikre (U.S., Mar. 19, 2024) 144 S. Ct. 771.)

https://www.supremecourt.gov/opinions/23pdf/22-1178_p8k0.pdf

Common Law of Fair Procedure Does Not Supplant Code Vis-à-Vis Hospital Peer Review. 

Plaintiff is a licensed obstetrician and gynecologist who was suspended from holding staff privileges at defendant hospital without holding a hearing or giving plaintiff prior notice. Plaintiff sued defendants, alleging they failed to comply with statutory and common law procedural requirements in connection with suspending her privileges at the hospital. She further alleged that another set of defendants, the medical staff, lied to her regarding their obligations to report her suspension and resignation to the state licensing board, and that this violated the staff’s statutory and common law notice obligations. The trial court entered judgment for defendants. Affirming in part and reversing in part, the Court of Appeal stated: “We hold that the trial court correctly concluded the code is the sole source of procedural protections in connection with hospital peer review, and that the common law doctrine of fair procedure does not supplant those protections with additional guarantees. . . . [¶] We reach a different conclusion regarding [plaintiff’s] appeal from the order awarding attorney fees. . . . [W]e conclude a hypothetical reasonable attorney could have deemed [plaintiff’s] peer review claims against the [defendant] [m]edical [s]taff tenable and reasonably decided to take them to trial. This same logic does not apply to the fees awarded to [defendant hospital], because the court disposed of the claims against [defendant hospital] on summary judgment.” (Asiryan v. Medical Staff of Glendale Adventist Medical Center. (Cal. App. 2nd Dist., Div. 1, Mar. 19, 2024) 2024 WL 1171035.)

https://www.courts.ca.gov/opinions/documents/B316313.PDF

No Right to Continuance of a Domestic Violence Hearing.

When a petitioner seeks a domestic violence restraining order, is a respondent who has already responded to the petition entitled to a continuance of the hearing on the request “as a matter of course”? (Fam. Code, § 245, subd. (a).) The Court of Appeal concluded the trial court did not have a mandatory duty to grant a continuance to the petitioner under those circumstances. (N.M. v. W.K. (Cal. App. 1st Dist., Div. 3, Mar. 19, 2024) 2024 WL 1191503.)

https://www.courts.ca.gov/opinions/documents/A168081.PDF

Police Shooting.

Plaintiffs are surviving family members of a man shot to death by a Los Angeles police officer when he came toward the officer with a two-bladed box cutter and refused to put it down after being ordered to do so. The district court granted summary judgment for all defendants. The Ninth Circuit agreed with the lower court that the police officer was entitled to qualified immunity on the federal claims, but noted that the complaint also asserted state law claims for, inter alia, assault, wrongful death, and violation of the Bane Act (Civ. Code,§ 52.1). Affirming in part and reversing in part, the appeals court held: “However, because the reasonableness of [the police officer’s] force presents a triable issue, the district court erred in granting summary judgment on that basis as to certain of Plaintiffs’ state law claims.” (Estate of Hernandez by & through Hernandez v. City of Los Angeles (9th Cir., Mar. 21, 2024) 96 F.4th 1209.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/21/21-55994.pdf

Alleged Misrepresentations to Online Advertisers. 

On appeal, Meta (aka Facebook) contended the district court erred in certifying two class actions, one for damages and one for an injunction, of advertisers who paid Meta to place advertisements on social media platforms. Plaintiffs contended Meta misrepresented the estimate of people who would view their advertisements, instead of informing them that the metric related to the number of accounts. The evidence showed that the number of accounts was always larger than the number of people because non-human entities like businesses and clubs have accounts, some people have multiple accounts, and some people and bots create fake accounts. Affirming in part and reversing in part, the Ninth Circuit stated: “Because the district court did not abuse its discretion in determining that Federal Rule of Civil Procedure 23(b)(3) was satisfied, we affirm the certification of the damages class. However, we vacate the certification of the Rule 23(b)(2) injunction class for the district court to reconsider whether the named Plaintiffs have standing to seek an injunction.” (DZ Reserve v. Meta Platforms, Inc. (9th Cir., Mar. 21, 2024) 96 F.4th 1223.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/21/22-15916.pdf

Appeal Dismissed Because Brief Contained Fabricated Case Law.

The Ninth Circuit struck an appellant’s brief and dismissed the appeal stating: “Appellants filed an opening brief replete with misrepresentations and fabricated case law.” (Grant v. City of Long Beach (9th Cir., Mar. 22, 2024) 96 F.4th 1255.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/22/22-56121.pdf

Action Alleging Securities Fraud Dismissed. 

On May 15, 2020, defendant biopharmaceutical company announced that it might have discovered a “cure” for COVID-19.  The price of its stock rose precipitously, but then declined a week later following further explanations of  discovery. Plaintiff, individually, and on behalf of other similarly situated individuals who purchased defendant’s common stock between May 15 and May 21, 2020, sued, alleging violations of the Exchange Act and the Securities and Exchange Commission’s Rule 10b-5 by defendant, its CEO,  and its vice president. The district court granted defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) finding that plaintiff had failed to make plausible showings of falsity or scienter. Affirming, the Ninth Circuit stated: “We affirm because, in context, Defendants’ representations were not false, and Zenoff’s pleadings do not support the requisite strong inference of scienter.” (In re Sorrento Therapeutics, Inc. Securities Litigation (9th Cir., Mar. 25, 2024) 2024 WL 1245342.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/25/22-55641.pdf

Wage Order 16 Explained by the California Supreme Court. 

Industrial Welfare Commission (IWC) wage order No. 16-2001 governs wages, hours, and working conditions in the construction, drilling, logging, and mining industries. It entitles employees in these industries to at least minimum wage for “hours worked.” (Cal. Code Regs., tit. 8, § 11160.) In response to questions submitted by the Ninth Circuit, the California Supreme Court responded:

Question #1: “Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a Security Gate compensable as ‘hours worked’ within the meaning of . . . Wage Order No. 16?”

California’s high court responded: “[A]n employee’s time spent on an employer’s premises awaiting and undergoing an employer-mandated exit procedure that includes the employer’s visual inspection of the employee’s personal vehicle is compensable as ‘hours worked’ within the meaning of Wage Order No. 16, section 2(J).”

Question #2: “Is time spent on the employer’s premises in a personal vehicle, driving between the Security Gate and the employee parking lots, while subject to certain rules from the employer, compensable as ‘hours worked’ or as ‘employer-mandated travel’ within the meaning of . . . Wage Order No. 16?”

California’s high court responded: “[T]he time that an employee spends traveling between the Security Gate and the employee parking lots is compensable as ‘employer-mandated travel’ under Wage Order No. 16, section 5(A) if the Security Gate was the first location where the employee’s presence was required for an employment-related reason other than the practical necessity of accessing the worksite. Separately, this travel time is not compensable as ‘hours worked’ because an employer’s imposition of ordinary workplace rules on employees during their drive to the worksite in a personal vehicle does not create the requisite level of employer control.”

Question #3: “Is time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, compensable as ‘hours worked’ within the meaning of . . . Wage Order No. 16, or under California Labor Code Section 1194, when that time was designated as an unpaid ‘meal period’ under a qualifying collective bargaining agreement?”

California’s high court responded: “[W]hen an employee is covered by a collective bargaining agreement that complies with Labor Code section 512, subdivision (e) and Wage Order No. 16, section 10(E), and provides the employee with an ‘unpaid meal period,’ that time is nonetheless compensable under the wage order as ‘hours worked’ if the employer prohibits the employee from leaving the employer’s premises or a designated area during the meal period and if this prohibition prevents the employee from engaging in otherwise feasible personal activities. An employee may bring an action under Labor Code section 1194 to enforce the wage order and recover unpaid wages for that time.” (Huerta v. CSI Electrical Contractors (Cal., Mar. 25, 2024) 2024 WL 1245291.)

https://www.courts.ca.gov/opinions/documents/S275431.PDF

Defendant Failed to Show Parties Agreed to Arbitration. 

Plaintiff sued defendant, alleging it falsely advertised and misrepresented products sold on its website. Plaintiff asserted causes of action for negligent misrepresentation, violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.), false advertising, breach of express and implied warranty, and violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). on behalf of himself and similarly situated plaintiffs. Defendant responded by moving to compel arbitration, alleging that every page of its website has a hyperlink to the terms of use, which terms require mediation and arbitration of any controversy, claim or dispute. Defendant claimed these terms of use bound customers regardless of whether they clicked on this link, and without the need for any affirmative assent to the terms of use when using the site or buying products from it. The trial court denied the motion to compel arbitration, finding that defendant failed to show the parties agreed to arbitrate their dispute. Affirming, the Court of Appeal stated: “In seeking to compel arbitration, the website owner in this case asks us to depart from these prior cases and announce a new rule permitting broader enforcement of browsewrap provisions, or alternatively to find that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) preempts existing state law adverse to browsewrap provisions. We find no grounds to deviate from prior precedent and reject the novel FAA preemption claim.” (Weeks v. Interactive Life Forms, LLC (Cal. App. 2nd Dist., Div. 1, Mar. 25, 2024) 2024 WL 1250215.)

https://www.courts.ca.gov/opinions/documents/B323430.PDF

Judgment on the Pleadings in Insurance Bad Faith Case Reversed.

Plaintiff operates Harry’s Coffee Shop. Its commercial property policy includes: “Limited Fungi, Bacteria, or Virus Coverage” That endorsement contains provisions that: (1) add limited coverage in certain circumstances for “loss or damage” “caused by” “virus,” subject to certain conditions requiring that the virus was the “result of” one or more of a list of enumerated causes; and (2) exclude any “loss or damage caused directly or indirectly by” the “[p]resence, growth, proliferation, spread or any activity of ‘fungi’, wet rot, dry rot, bacteria or virus,” subject to an exception where the loss or damage falls within the limited coverage provided under the Virus Endorsement. In March 2020, plaintiff submitted a claim under the policy for loss of business income due to the community spread and infection of coronavirus at Harry’s Coffee Shop. Defendant denied the claim. This action for breach of contract, breach of the implied covenant of good faith and fair dealing, declaratory relief, and professional negligence followed that denial. The trial court dismissed the case after granting defendant’s judgment on the pleadings. Reversing and remanding, the Court of Appeal stated: “Because the instant matter is only at the pleading stage, we agree that [plaintiff] has done enough to raise the issue that its policy is illusory, which in turn raises factual questions that require discovery and the marshalling of evidence.” (Brooklyn Restaurants, Inc. v. Sentinel Insurance Company, Ltd. (Cal. App. 4th Dist., Div. 1, Mar. 25, 2024) 2024 WL 1250216.)

https://www.courts.ca.gov/opinions/documents/D081132.PDF

“Employees who prevail in actions to recover unpaid minimum and overtime wages are entitled to their reasonable litigation costs,” Court of Appeal, Second District. 

Plaintiff sued defendant for Labor Code violations, and a jury returned a plaintiff’s verdict for $7,659.93. Plaintiff requested attorney fees in the amount of $296,920 and costs in the amount of $26,932.84 under Labor Code § 1194 subdivision (a), which entitles prevailing employees to their reasonable litigation costs, including attorney fees. The trial court denied plaintiff’s requests for fees and costs in their entirety, finding plaintiff’s counsel severely over-litigated the case, and the requested fees and costs were grossly disproportional to plaintiff’s limited trial success. The trial court relied on Code of Civil Procedure §1033, subdivision (a), which gives trial courts discretion to deny prevailing plaintiffs their litigation costs when plaintiffs file their case as an unlimited civil proceeding but only recover an amount available in a limited civil case. Reversing, the Court of Appeal stated: “We hold employees who prevail in actions to recover unpaid minimum and overtime wages are entitled to their reasonable litigation costs under Labor Code section 1194, subdivision (a), irrespective of the amount recovered. We express no opinion on the reasonableness of Gramajo’s requests for litigation costs.” (Gramajo v. Joe’s Pizza on Sunset, Inc. (Cal. App. 2nd Dist., Div. 8, Mar. 25, 2024. 2024 WL 1250214.)

https://www.courts.ca.gov/opinions/documents/B322697.PDF

Agreement to Arbitrate Not a Healthcare Decision. 

In this case, a health care agent signed two contracts with a skilled nursing facility. One secured the principal’s admission to the facility. The other made arbitration the exclusive pathway for resolving disputes with the facility. This second contract was optional and had no bearing on whether the principal could access the facility or receive care. The issue before the California Supreme Court was whether execution of the second, separate, and optional contract for arbitration was a health care decision within the health care agent’s authority. The Supreme Court noted that under California’s Health Care Decisions Law (Prob. Code, § 4600 et seq.), a principal may appoint a health care agent to make health care decisions should the principal later lack capacity to make them. Holding that the agreement to arbitrate was not a healthcare decision, California’s highest court stated: “[T]he facility’s owners and operators may not, therefore, rely on the agent’s execution of that second agreement to compel arbitration of claims arising from the principal’s alleged maltreatment that have been filed in court.” (Harrod v. Country Oaks Partners, LLC (Cal., Mar. 28, 2024) 2024 WL 1319134.)

https://www.courts.ca.gov/opinions/documents/S276545.PDF

Store Is a Public Nuisance. 

A district attorney sued a liquor store/snack bar for enabling a public nuisance because illegal drug buyers and sellers congregated and waited there to make connections. The store tolerated loitering and drug dealing, had no guards, stayed open until 2:00 a.m., and sold alcohol in cheap, single-serving containers. The trial court granted summary judgment for the People and ordered the store to hire guards and to stop selling single-serving containers of alcohol. Affirming, the Court of Appeal stated: “In sum, the People presented evidence of frequent drug dealing and of an attendant and serious history of violent crime. This evidence shifted the burden to [the store] to illustrate how the measures it refused to take would be more burdensome than beneficial from a social standpoint. [The store] has not attempted this showing. As a matter of law, then, [the store’s owner]’s arguments on this score fail to unhorse the judgment.” (People v. Freetown Holdings Company (Cal. App. 2nd Dist., Div. 8, Mar. 28, 2024) 2024 WL 1325949.)

https://www.courts.ca.gov/opinions/documents/B309295.PDF

Liquidated Damages Provision Upheld. 

The parties entered into a written agreement to enter a judgment pursuant to Code of Civil Procedure § 664.6. When one party reneged, the other filed a motion for entry of judgment, which the trial court granted. Affirming, the Court of Appeal stated: “The settlement was not a form contract, but rather the result of significant negotiations, including prior settlement conferences. In addition, the liquidated damages amount of $250,000 was not unreasonably out of proportion to the $2.2 million settlement. (See Gormley[ v. Gonzalez (2022)84 Cal.App.5th 72,] 87.) The trial court also concluded that Johnston failed to meet his burden to show $250,000 was an unreasonable amount in the circumstances, a determination to which we defer.” (BTHHM Berkeley, LLC v. Johnston (Cal App. 1st Dist., Div. 4, Mar. 28, 2024) 2024 WL 1336433.)

https://www.courts.ca.gov/opinions/documents/A166242.PDF

Deacon Accused of Deceit in His Homily; But No Anti-SLAPP Protection

Plaintiff was inspired by a homily, delivered during church services by defendant, a deacon at plaintiff’s church, to donate more than $1 million to purchase a car and a home for a destitute family. Plaintiff brought this lawsuit about five months later, claiming he was deceived into believing the car and house would be purchased for, and titled to, the family; and he would not have made the donation if he had known  a nonprofit public benefit corporation founded and led by the deacon’s wife, would buy the car and house for itself, instead of the family. Defendants filed a special motion to strike the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16), asserting the homily was protected speech, and so were a conversation between the deacon and plaintiff that occurred in the church after the homily, as well as all the private conversations that ensued over the following days. The trial court denied the motion, finding the “core injury producing conduct upon which the plaintiff’s claim is premised” did not rest on protected speech, but rather on “conduct and speech that was private . . . and not directed at a wide public audience”; and that “the causes of action arose from further communications” that took place in the weeks after the homily. Affirming, the Court of Appeal agreed with the trial court’s analysis and order. (Gazal v. Echeverry (Cal. App. 2nd Dist., Div. 8, Mar. 29, 2024) 2024 WL 1340844.)

https://www.courts.ca.gov/opinions/documents/B327668.PDF


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